Karnataka High Court
V.K. Rama Setty vs A. Gopinath on 15 June, 1998
Equivalent citations: AIR1998KANT186, 1997(4)KARLJ40
Author: M.B. Vishwanath
Bench: M.B. Vishwanath
ORDER
1. In this petition the order dated 6-12-1990 passed by the Chief Judge of Small Causes, Bangalore, in Misc. No. 670 of 1982 filed under Section 144(1) read with Order 21, Rule 99 of the Civil Procedure Code by petitioner V.K. Rama Setty against respondent-A. Gopinath has been challenged.
2. Petitioner Rama Setty in his Misc. Petition filed under Order 21, Rule 99 read with Section 144(1) read with Section 151 of the Civil Procedure Code prayed for possession (restitution) of the schedule premises which is the upstairs portion of the premises bearing No. 7, Thimmarayasetty Lane, Nagarthapet Lane, Bangalore-2.
3. It bears repetition. The present revision petition in which I am going to pass the present order is H.R.R.P. No. 254 of 1992.
4. There was a connected H.R.R.P. No. 3863 of 1991 filed by present respondent-Gopinath against present petitioner Rama Setty. This H.R.R.P. No. 3863 of 1991 has been disposed of on 8-6-1998.
5. Before coming to the present H.R.R.P., it is necessary to state, in the peculiar circumstances of the case, the facts in H.R.R.P. No. 3863 of 1991.
6. H.R.R.P. No. 3863 of 1991 arose out of the order passed in Execution No. 720 of 1990 on the file of the 19th Additional City Civil Judge, Bangalore. Execution No. 720 of 1990 arose out of the decree passed in O.S. No. 2956 of 1982 on 30-6-1990 on the file of the II Additional City Civil Judge, Bangalore. The suit O.S. No. 2956 of 1982 was filed by present petitioner-Rama Setty against present respondent Gopinath praying that the ex parte order of eviction passed in H.R.C. No. 307 of 1982 on the file of the learned Small Causes Judge was null and void and not binding on the plaintiff (Rama Setty) and that he was entitled to possession of the petition schedule premises.
7. O.S. No. 2956 of 1982 was put into execution by decree-holder Rama Setty against respondent Gopinath. The Court issued delivery warrant in Execution No. 720 of 1990. The delivery warrant was challenged by Gopinath before this Court in H.R.R.P. No. 3863 of 1991.
8. It is not necessary to narrate the earlier developments. Suffice it to say that the matter was referred to the Full Bench consisting of three Hon'ble Judges of this Court.
9. The Full Bench by its order dated 22-8-1997 held that the decree passed in O.S. No. 2956 of 1982 (wrongly noted in the order as O.S. No. 2956 of 1992} is null and void.
10. In view of the ruling given by the Full Bench, in V.K. Rama Setty v A. Gopinath, was allowed and the order passed issuing delivery warrant was set aside.
11. From the facts stated above, it is clear that the petitioner Rama Setty filed Misc. No. 670 of 1982 and subsequently, presumably by way of abundant precaution, filed O.S. No. 2956 of 1982 which came to be decreed by the lower Court.
12. As I have already stated, the Full Bench has held that the decree passed in O.S. No. 2956 of 1982 was a nullity.
13. Now I will revert back to the present H.R.R.P. in which the order passed by the Chief Judge rejecting Misc. No. 670 of 1982 filed by Rama Setty has been challenged.
14. In the Court below, the evidence was recorded in Misc.No. 670 of 1982. Petitioner Rama Setty has got himself examined and one witness Girija Murthy. Respondent Gopinath got himself examined and one witness Panduranga.
15. On behalf of petitioner Rama Setty as many as 21 documents have been produced. It should be stated here that O.S. No. 2956 of 1982 was filed by Rama Setty subsequent to his filing Misc. No. 670 of 1982, the order in which has been impugned at present.
16. Though Misc. No. 670 of 1982 was filed earlier, O.S. No, 2956 of 1982 was decreed earlier. At the time O.S. No. 2956 of 1982 was decreed, Misc. No. 670 of 1982 was pending. In view of the fact that the petitioner's suit filed subsequently for declaration and injunction was decreed, what the Chief Judge observed in his impugned order was that it was not necessary for the petitioner Rama Setty to have pursued Misc. No. 670 of 1982 and he could as well have withdrawn Misc. No. 670 of 1982. I have carefully gone through the impugned order passed by the Chief Judge.
17. In view of his above conclusion, it is obvious, he has not discussed the voluminous evidence and the documents produced by the petitioner obviously because the petitioner's suit came to be decreed.
18. This Court, as I have already stated, held that the decree in O.S. No. 2956 of 1982 was a nullity, The learned Chief Judge, to repeat, has not discussed the evidence on record. He has not adverted to the documents produced by the petitioner. In this Court both the Counsel took me through the evidence and the documents to justify their respective stand. This Court cannot assume the role of original Court. It is open to the parties to urge their points in the Court below.
19. For the aforesaid reasons the impugned order is set aside and the matter is remanded to the learned Chief Judge who has passed the impugned order. He is directed to discuss the evidence and then pass appropriate order. It is made clear that the parties shall not be permitted to adduce further evidence. All contentions left open.
Revision petition allowed and the matter remanded. No costs in this Court.